SECOND SECTION
Application no. 18600/13
Edwin STEINER and Ottilia STEINER-FASSLER
against Switzerland
lodged on 11 March 2013
STATEMENT OF FACTS
I. THE FACTS
1. The applicants, Mr Edwin Steiner and Mrs Ottilia Steiner-Fässler, are Swiss nationals, who were born in 1938 and 1944 respectively, and live in Alpthal in the canton of Schwyz. They are not represented by a lawyer.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. In the canton of Schwyz, the Way of St James (Jakobsweg), a network of medieval pilgrimage routes leading through several European countries to Santiago de Compostela in the northwest of Spain, runs from Einsiedeln via Alpthal to the city of Schwyz.
4. In past years, the approximately 1.5 kilometre long route between Chriegmatt and Gämschtobelbach ran along the main road on a paved sidewalk on the left side of the river Alp. In 2003, the authorities of the canton of Schwyz expressed their intention to change this route of the Way of St James to the right side of the river Alp, on a forest road intersecting the applicants’ property for 7 metres (on the southern side) and 17 metres (on the northern part) respectively. Moreover, the forest road leads through a low-level moor of national importance (inventory no. 3154), which is constitutionally protected (see Article 78[5] of the Federal Constitution).
5. On 1 July 2006, the applicants, their children, representatives of the district council and the district administration, as well as the director of the cantonal office for forests, hunting and fishing, inspected the site. The applicants declared that they would not tolerate the new path through their property owing to several unfriendly confrontations with hikers littering their property and persons walking their dogs off-leash. On 3 July 2004, the director of the cantonal office for forests, hunting and fishing, who was hierarchically subordinate to the department of economy, had signed a memorandum (Aktennotiz). This memorandum stated that the relevant legislation would allow the compulsory acquisition of the easement (Wegrecht), if it could not be acquired on a voluntary basis by the canton; however, taking into account the applicants’ health and well-being, renunciation was declared and it was decided (Beschlüsse) not to enforce the easement (“Auf die rechtliche Durchsetzung des Wegrechts [...] wird verzichtet.”). In return, the applicants declared that they would tolerate “until further notice” (“auf Zusehen hin”) the Iron Biker Race, which takes place once a year, through their property.
B. The objection procedure before the department of environment of the canton of Schwyz
6. By the end of 2009, the department of environment of the canton of Schwyz decided to transfer the Way of St James to the right side of the river Alp. The explanatory report of the use zoning plan, published between 29 October and 29 November 2010, stated that it was difficult to understand why the pilgrims and hikers should walk on a not very appealing paved sidewalk when there was a shady and idyllic forest gravel walk on the other side of the river. The applicants’ objection to the project was dismissed by the department of environment of the canton of Schwyz on 19 January 2011. The department explained that years ago the municipality of Alpthal, the district of Schwyz and the Swiss Association for Hiking Trails had tried in vain to find an adequate solution with the Steiner-Fässler family. Recently, the applicants had explicitly refused further talks in order to find a friendly settlement. The decision held, inter alia, that the memorandum of 3 July 2004 had no binding force for the department of environment: the assurance had obviously been issued by an authority without the competence and, after the assurance, the applicants had not made any irreversible disposition in respect to their property causing an irreparable disadvantage. Therefore, the good faith of the applicants was not protected (see Article 9 of the Federal Constitution).
C. The appeal to the council and the administrative court of the canton of Schwyz
7. On 31 May 2011, the council (Regierungsrat) of the canton of Schwyz dismissed the applicants’ appeal. On reviewing the facts, the decision-making body observed that the applicants’ house is 70 metres away from the gravel walk; hence, no direct nuisance from hikers and dog owners is to be expected. Furthermore, the two small portions of the land of the applicants which are intersected by the path are classified as forest areas, which are by law publicly accessible (see Article 699 of the Swiss Civil Code, quoted below in “Relevant domestic law and practice”). Therefore, the council found the interference in the applicants’ property to be marginal. It also stated that the memorandum of 3 July 2004 might constitute a basis for legitimate expectations (Vertrauensgrundlage). However, following the reasoning already set out in the lower decision, the council added that owing to the preponderant public interest in a “safe and appealing” Way of St James, the good faith and legitimate expectations of the applicants were not protected.
8. On 21 September 2011, the administrative court of the canton of Schwyz dismissed the appeal on the same grounds as the previous instance. The applicants’ request to edit, inter alia, the construction permit of 1984 demonstrating that the original Way of St James had historically always run on the left side of the river Alp and that the forest path on the right side of the river was constructed in 1984 was not granted. The administrative court explained that owing to severe storms in 1984 the banks of the river Alp had to be lined. In order to find out the exact historical route of the Way of St James, the court made several inquiries. On 10 August 2011, it asked the department of environment of the canton of Schwyz for further information. The department, however, was not able to clarify the situation. The department submitted that the relocation of the path on the sidewalk was being done without any formal procedure. According to a letter of the office for cultural landscapes of 21 May 2005, it could be presumed that the pilgrims used to walk on the right side of the river Alp (i.e., on the forest path). Based on that evidence, the court observed that the situation remained unclear. Nevertheless, in the present case, the court held that the issue was not decisive since, after the storms in 1984, no historical substance of the Way of St James was left. The court concluded that after all the judicial fact-finding undertaken by the court the request of the applicants was not pertinent and had therefore to be refused.
D. The appeal before the Federal Supreme Court
9. By a judgment of 22 August 2012, notified to the parties on 11 September 2012, the Federal Supreme Court dismissed the appeal. The request of the applicants to edit the construction permit of 1984 was not granted for lack of pertinence to the case. Furthermore, the Federal Hiking Trail Act requires that historical trails are only to be included into the network of hiking trails if it is possible to do so (“nach Möglichkeit”). With regard to the memorandum of 3 July 2004, the court held that regardless of whether the director of the cantonal office for forests, hunting and fishing was competent to issue an assurance or not, the agreement between the applicants and the authorities could be freely revoked at any time (for example, the memorandum explicitly set out that the applicants were willing to tolerate “until further notice” the Iron Biker Race through their property). Furthermore, the Federal Supreme Court held that the applicants had not suffered any irreparable disadvantage whatsoever.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Federal Constitution of the Swiss Confederation of 18 April 1999 and the case law of the Federal Supreme Court
1. Protection of good faith
(a) Constitutional text
10. Article 9 of the Constitution protects the individual against arbitrary conduct and contains the principle of good faith. It reads:
“Everyone has the right to be treated by the authorities in good faith and in a non-arbitrary manner.”
(b) Case-law of the Federal Supreme Court
11. According to the case law of the Federal Supreme Court, Article 9 of the Federal Constitution confers on every person the constitutionally guaranteed and enforceable right to rely in good faith on assurances issued by authorities, if four conditions are met (if not indicated otherwise, the citations below are taken from the Decision of the Federal Supreme Court 129 I 161, 170 [X. v. City of Chur]):
(A) a basis for good faith (Vertrauensgrundlage), i.e., “a conduct of the administration (for example: an assurance) raising a certain expectation in the individual” (see among many Decision of the Federal Supreme Court 131 V 472, 480);
(B) a legitimate expectation (berechtigtes Vertrauen), i.e. “that the person who claims a right from the protection of good faith was entitled to trust on that basis”, whereby the assurance of the authority must not be abstract, but be related to a given issue (Decision of the Federal Supreme Court 125 I 267, 274);
(C) a disposition made in good faith (Vertrauensbetätigung), i.e., that the concerned person has made (for example, after the assurance) “any disposition causing an irreparable disadvantage”;
(D) the absence of a preponderant public interest.
12. Swiss scholars have repeatedly criticised that the courts are relatively reluctant in protecting good faith: see, inter alia, Giovanni Biaggini, Bundesverfassung der Schweizerischen Eidgenossenschaft, Kommentar, Zürich 2007, note 15 (in fine) ad Article 9 (with further references); Beatrice Weber-Dürler, Neuere Entwicklungen des Vertrauensschutzes, Zentralblatt (ZBl) 2002, p. 285 et seq. (especially p. 288 et seq.).
2. Protection of natural heritage
13. Article 78(5) of the Federal Constitution reads as follows:
“Moors and wetlands of special beauty and national importance shall be preserved. No buildings may be built on them and no changes may be made to the land, except for the construction of facilities that serve the protection of the moors or wetlands or their continued use for agricultural purposes.”
B. Swiss Civil Code (Schweizerisches Zivilgesetzbuch vom 10. Dezember 1907 [SR 210])
14. Article 699 reads as follows:
“1 Any person has the right to enter woodlands and meadows and to gather wild berries, funghi and the like to the extent permitted by local custom except where the competent authority enacts specific limited prohibitions in the interests of conservation.
2 Cantonal law may enact more detailed regulations on access to land owned by others for the purposes of hunting and fishing.”
C. Federal Hiking Trails Act (Bundesgesetz vom 4. Oktober 1985 über Fuss- und Wanderwege [FWG; SR 704])
15. Articles 3 and 7 of the federal Act stipulate:
Article 3 Network of Hiking Trails
“1 Hiking trails shall essentially serve for recreational purposes and shall generally lie outside of settlement areas.
2 Hiking trails shall be conveniently connected between each other. Other paths, parts of sidewalks and little frequented roads may serve as coupling links. Historical trails are if possible to be included (into the network of hiking trails).
3 The network of hiking trails shall especially encompass areas, which are suitable for recreation, quaint landscaped (scenic views, river borders etc.), cultural attractions, public transport stops as well as touristic facilities.”
Article 7 Replacement
“1 ...
2 Hiking trails are especially to be replaced:
a.-c. ...
d. if their pavement is – on longer distances – unsuitable for pedestrians.
3 ...”
D. Federal Hiking Trails Ordinance (Verordnung vom 26. November 1986 über Fuss- und Wanderwege [FWV; SR 704.1])
16. Article 6 of the federal ordinance defines which pavements are not suitable for hiking trails:
“Unsuitable in the sense of Article 7(2)d of the Federal Hiking Trail Act are namely all pavements consisting of bitumen, tar or concrete.”
E. The Ordinance of the Canton of Schwyz Regarding the Federal Hiking Trails Act (Kantonale Verordnung zum Bundesgesetz über Fuss- und Wanderwege vom 18. Mai 2004 [SRSZ 443.210])
17. Article 13(3) of this cantonal ordinance reads as follows:
“Rights can be expropriated according to the cantonal expropriation provisions if they cannot be acquired free-hand.”
III. THE COMPLAINTS
The applicants claim a violation of Article 6 § 1 of the Convention owing to the fact that the Swiss authorities and courts were not willing to edit the evidence relating to the construction permit of 1984 (“fair trial”) and to grant protection to the memorandum of 3 July 2004.
QUESTIONS TO THE PARTIES
1. In accordance with Article 6 § 1 of the Convention, was the right to be heard respected as regards the courts’ refusal to grant the applicants’ request (i.e., the production of documents demonstrating that the original Way of St James has historically run on the left side of the river Alp and that the forest path on the right side of the river was constructed not before 1984)?
2. Taking into account that the Way of St James is an important hiking trail in the canton of Schwyz and therefore a major tourism attraction generating nuisance: Has there been an interference of the applicants’ right to respect for their private and family life, as well for their home contrary to Article 8 of the Convention? In the affirmative, was that interference in accordance with the law, pursuing a legitimate aim and necessary in terms of Article 8 § 2?
3. In view to Article 8 of the Convention and legal certainty: Was there a breach of the applicants’ “legitimate expectations” based on the memorandum of 3 July 2004?
Full & Egal Universal Law Academy